Law used to ban ‘head shop’ drug deemed unconstitutional

A law used to ban a psychoactive substance sold lawfully in “head shops” until 2011 has been found to be unconstitutional.

In a judgment concerning what the Court of Appeal described as a “constitutional issue of far-reaching importance”, the three-judge court unanimously ruled as invalid a regulation making illegal the possession of a stimulant, methylethcathinone.

The court said section 2(2) of the 1977 Misuse of Drugs Act, under which the regulation was brought in, was unconstitutional because it purported to give the government law-making powers which are the exclusive authority of the Oireachtas.

The State has indicated it may seek to appeal against the decision to the Supreme Court on a point of exceptional public importance.

The case concerned a prosecution of a man for possession for sale of methylethcathinone which was among a number of substances put on the controlled drugs list in 2010.

Legal challenge

Mr Justice Gerard Hogan, on behalf of the Court of Appeal, said section 2(2) of the 1977 Act was repugnant to article 15.2.1 of the Constitution which vests sole exclusive power to make laws in the Oireachtas. The fundamental objective of principles and policies in relation to this constitutional provision is to ensure legislative power is not ceded by the Oireachtas “under the guise of regulatory power”, he said.

The Government is “more or less at large” under the Act to declare substances controlled drugs but no principles or policies about the nature of these substances are contained in section 2(2) of the Act, he said.

Difficulty

It might be asked whether it would be open to the government to employ the same law to ban other types of drugs such as alcohol and tobacco, he said. In the Bederev case, the fundamental choice remained with the government, for the purposes of the 1977 Act, as to which dangerous or harmful drugs were liable to such misuse they should be declared controlled drugs.

The use of terms such as “misuse”, “dangerous” and “harmful” in the title of the 1977 Act “represent laudable and desirable objectives”, he said. However, those terms in themselves did not constitute sufficient restriction on the more or less unlimited power of regulation vested in the Government by section 2(2) of the Act in relation to what substances should be declared controlled drugs, he said.